When Congress Comes Calling

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IV. Constitutional Testimonial Privileges of Witnesses 33 33 33 The privilege does not cover matters handled within the broader executive branch beyond the Executive Office of the President. Thus, it does not cover decision making on implementation of laws that delegate policymaking authority to the heads of departments and agencies or which allow presidential delegations of authority. The subject communication must be authored or “solicited and received” by the President or a close White House adviser. The adviser must be in “operational proximity” to the President, which effectively limits coverage of the privilege to the administrative boundaries of the Executive Office of the President and the White House. The privilege remains a qualified privilege that may be overcome by a showing that the information sought “likely contains important evidence” and is unavailable elsewhere to an appropriate investigatory authority. The President may not prevent such a showing of need by granting absolute immunity to witnesses who would otherwise provide the information necessary to show that “important” evidence exists. 2. Evolution of the Law of Executive Privilege and Helpful Guidance from the Cases Presidential claims of a right to preserve the confidentiality of information and documents in the face of legislative demands have figured prominently, though intermittently, in executive-congressional relations since at least 1792. In that year, President Washington discussed with his cabinet how to respond to a congressional inquiry into the military debacle that befell General St. Clair’s expedition. 142 Few such interbranch disputes over access to information have reached the courts. The vast majority of such disputes are usually resolved through political negotiation. 143 In fact, it was not until the Watergate-related lawsuits in the 1970s seeking access to President Nixon’s tapes that the existence of a presidential confidentiality privilege was recognized by a court. It then became judicially established as necessary to protect the President’s status in our constitutional scheme of separated powers. To understand the law of executive privilege, it is helpful to examine the court opinions in cases examining these issues. Of the ten court decisions involving claims of executive privilege, 144 four have involved disputes between Congress and the Executive; 145 two of these resulted in decisions that resolved the dispute “on the merits” of the case. 146 Two of the other six cases also provide helpful guidance. One considered legislation granting custody of President Nixon’s presidential records to the Administrator of the General Services Administration. 147 The most recent appellate court ruling examined a private group’s right of access under the Freedom of Information Act to pardon documents in the custody of the Justice Department, and in rejecting the privilege claim, further clarified the law in this area. 148 a. Nixon and Post-Watergate Rulings The Nixon and post-Watergate cases established the broad contours of the presidential communications privilege. Under those precedents, the privilege, which is constitutionally rooted, could be invoked by the President when asked to produce documents or other materials or information that reflect presidential decision making and deliberations that the President believes should remain confidential. If the President does so, the materials become presumptively protected from disclosure. The privilege, however, is qualified, not absolute, and can be overcome by an adequate showing of need. Finally, while reviewing courts have expressed reluctance to balance executive privilege claims against a congressional demand for information, they have acknowledged they will do so if the political branches have tried in good faith but failed to reach an accommodation. b. Issues Unresolved by Nixon and the Post-Watergate Cases However, until the U.S. Court of Appeals for the D.C. Circuit’s 1997 ruling in In re Sealed Case (Espy) 149 and its 2004 decision in Judicial Watch v. Department of Justice, 150 these judicial decisions had left important gaps in the law of presidential privilege. The significant issues left open included: 33 Does the President have to have actually seen or been familiar with the disputed matter? 26 | The Constitution Project
When Congress Comes Calling: A Primer on the Principles, Practices, and Pragmatics of Legislative Inquiry 33 33 33 Does the presidential privilege encompass documents and information developed by, or in the possession of, officers and employees in the departments and agencies of the Executive Branch? Does the privilege encompass all communications with respect to which the President may be interested or is it confined to actual presidential decision making and, if so, is it limited to any particular type of presidential decision making? Precisely what demonstration of need must be shown to justify release of materials that qualify for the privilege? The unanimous panel in Espy, and the subsequent reaffirmation of these principles by the D.C. Circuit in Judicial Watch, authoritatively addressed each of these issues. Most recently, the district court decision in House Committee on the Judiciary v. Miers 151 clarified that the privilege does not provide absolute immunity to resist congressional inquiries. These decisions clarified the limits of the privilege and drastically altered the legal playing field in resolving such disputes. c. The Narrowing of the Privilege Through Court Decisions in Espy, Judicial Watch, and Miers i. Espy The Espy case arose out of an Office of Independent Counsel (OIC) investigation of former Agriculture Secretary Mike Espy. When allegations of improprieties by Espy surfaced in March 1994, President Clinton ordered the White House Counsel’s Office to investigate, and that office prepared a report for the President, which was publicly released in October 1994. The President never saw any of the underlying or supporting documents to the report. Separately, a special panel of the D.C. Circuit, at the request of the Attorney General, appointed an Independent Counsel and a grand jury issued a subpoena for all documents that were accumulated or used in preparation of the White House Counsel’s report. In response, the President withheld 84 documents, claiming both the executive and deliberative process privileges for all documents. In ruling on the Independent Counsel’s motion to compel, the district court upheld the privilege claims and quashed the subpoena. In its written opinion the court did not discuss the documents in any detail and provided no analysis of the grand jury’s need for the documents. The appeals court panel unanimously reversed and ordered that the documents be produced. The Presidential Communications Privilege Is Constitutionally Based, But Qualified, and May Be Overcome by a Substantial Showing of Need and Unavailability At the outset, the D.C. Circuit’s opinion carefully distinguishes between the “presidential communications privilege” and the “deliberative process privilege.” Both, the court observed, are executive privileges designed to protect the confidentiality of executive branch decision making. But the deliberative process privilege (discussed in detail in Chapter V below) applies to executive branch officials generally and is not constitutionally based. It, therefore, can be overcome with a lesser showing of need and “disappears altogether when there is any reason to believe government misconduct [has] occurred.” 152 On the other hand, the court explained, the presidential communications “privilege is rooted in constitutional separation of powers principles and the President’s unique constitutional role” and applies only to “direct decision making by the President.” 153 The privilege may be overcome only by a substantial showing that “the subpoenaed materials likely contain[] important evidence” and that “the evidence is not available with due diligence elsewhere.” 154 The presidential communications privilege applies to all documents in their entirety 155 and covers final and post-decisional materials as well as pre-deliberative ones. 156 The Constitution Project | 27
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